NCJ Number
38687
Journal
University of Pennsylvania Law Review Volume: 125 Issue: 1 Dated: (NOVEMBER 1976) Pages: 62-118
Date Published
1976
Length
57 pages
Annotation
CRITICAL ANALYSIS OF THE WISDOM OF USING ADMINISTRATIVE RULEMAKING TO DELIMIT SELECTIVE ENFORCEMENT OF THE SUBSTANTIVE CRIMINAL LAW IN LIGHT OF THE 'MYTH OF FULL ENFORCEMENT'.
Abstract
FULL ENFORCEMENT STATUTES AND THE POLICIES OF SEPARATION AND DELEGATION OF POWERS ARE ANALYZED IN ORDER TO CONCEPTUALLY LOCATE THE POLICE IN RELATION TO OTHER PRINCIPAL DECISIONMAKERS IN THE CRIMINAL LAW PROCESS. THE RELATIONSHIP OF THE NEARLY UNANIMOUS REJECTION OF THE CIVIL LAW DOCTRINE OF DESUETUDE TO THE DOCTRINE OF SEPARATION OF POWERS, AND WHAT THAT REJECTION SUGGESTS ABOUT THE RELATIONSHIP OF OUR LEGISLATURES TO THE POLICE ARE ALSO ADDRESSED. IN ADDITION, THE IMPLICATIONS OF 'ADMINISTRATIVE CRIMES' FOR THE SEPARATION OF POWERS AND DELEGATION THEORIES ARE EXAMINED IN THE CONTEXT OF POLICE RULEMAKING. THE UNDERLYING POLICIES OF THE SEPARATION OF POWERS DOCTRINE THAT RELATE TO SUBSTANTIVE RULEMAKING ARE THEN DISCUSSED IN AN ATTEMPT TO DETERMINE WHETHER THOSE POLICIES SHOULD BE ABANDONED TO THE EXTENT THAT SUBSTANTIVE RULEMAKING WOULD REQUIRE. THE AUTHOR UNEQUIVOCABLY REJECTS THE SUGGESTION THAT THE POLICE SHOULD ENGAGE IN RULEMAKING THAT DIRECTLY AFFECTS THE SCOPE OF THE SUBSTANTIVE CRIMINAL LAW. WHETHER THE STRUCTURE OF THE LAW PERMITS THE POLICE TO EXERCISE THIS KIND OF AUTHORITY IS ALSO QUESTIONED. IT IS CONCLUDED THAT IT WOULD NOT BE WISE TO ACCORD THE POLICE THIS POWER, EVEN IF IT WERE PERMISSIBLE TO DO SO. IT IS SUGGESTED THAT BY EXERCISING CONTROL OVER THE 'DISCRETION OF DEPLOYMENT', A JURISDICTION COULD GREATLY CURTAIL THE SCOPE OF A POLICE DEPARTMENT'S DISCRETIONARY AUTHORITY. (AUTHOR ABSTRACT)